(REPRINTED WITH ADOPTED AMENDMENTS)

 

Senate Bill No. 516–Committee on Commerce and Labor

 

March 26, 2001

____________

 

Referred to Committee on Commerce and Labor

 

SUMMARY—Requires affidavit in support of action for professional negligence against certain design professionals. (BDR 3‑1452)

 

FISCAL NOTE:                     Effect on Local Government: Yes.

                             Effect on the State: Yes.

 

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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to real property; requiring an affidavit in support of an action for professional negligence against certain design professionals; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1    Section 1. Chapter 40 of NRS is hereby amended by adding thereto

1-2  the provisions set forth as sections 2, 3 and 4 of this act.

1-3    Sec. 2.  As used in this section and sections 3 and 4 of this act, unless

1-4  the context otherwise requires, “design professional” means a person

1-5  who holds a professional license or certificate issued pursuant to chapter

1-6  623, 623A or 625 of NRS, or a person primarily engaged in the practice

1-7  of architecture, landscape architecture, professional engineering or land

1-8  surveying.

1-9    Sec. 3.  1.  Except as otherwise provided in subsection 2, in an

1-10  action commenced pursuant to NRS 40.600 to 40.695, inclusive, and

1-11  sections 2, 3 and 4 of this act for the professional negligence of a design

1-12  professional, concurrently with the service of the first pleading in the

1-13  action, the attorney for the complainant shall file an affidavit with the

1-14  court stating that the attorney:

1-15  (a) Has reviewed the facts of the case;

1-16  (b) Has consulted with an expert named in the affidavit;

1-17  (c) Reasonably believes the expert who was consulted is

1-18  knowledgeable in the relevant discipline involved in the action; and

1-19  (d) Has concluded on the basis of his review and the consultation with

1-20  the expert that the action has a reasonable basis in law and fact.

1-21  2.  The attorney for the complainant may file the affidavit required

1-22  pursuant to subsection 1 at a later time if he could not consult with an

1-23  expert and prepare the affidavit before filing the action without causing

2-1  the action to be impaired or barred by the statute of limitations or repose,

2-2  or other limitations prescribed by law. If the attorney must submit the

2-3  affidavit late, he shall file an affidavit concurrently with the service of

2-4  the first pleading in the action stating his reason for failing to comply

2-5  with subsection 1 and the attorney shall consult with an expert and file

2-6  the affidavit required pursuant to subsection 1 not later than 45 days

2-7  after filing the action.

2-8    3.  In addition to the statement included in the affidavit pursuant to

2-9  subsection 1, a report must be attached to the affidavit. Except as

2-10  otherwise provided in subsection 4, the report must be prepared by the

2-11  expert consulted by the attorney and include, without limitation:

2-12  (a) The resumé of the expert;

2-13  (b) A statement that the expert is experienced in each discipline which

2-14  is the subject of the report;

2-15  (c) A copy of each nonprivileged document reviewed by the expert in

2-16  preparing his report, including, without limitation, each record, report

2-17  and related document that the expert has determined is relevant to the

2-18  allegations of negligent conduct that are the basis for the action;

2-19  (d) The conclusions of the expert and the basis for the conclusions;

2-20  and

2-21  (e) A statement that the expert has concluded that there is a

2-22  reasonable basis for filing the action.

2-23  4.  In an action brought by a claimant in which an affidavit is

2-24  required to be filed pursuant to subsection 1:

2-25  (a) The report required pursuant to subsection 3 is not required to

2-26  include the information set forth in paragraphs (c) and (d) of subsection

2-27  3 if the claimant or his attorney files an affidavit, at the time that the

2-28  affidavit is filed pursuant to subsection 1, stating that he made

2-29  reasonable efforts to obtain the nonprivileged documents described in

2-30  paragraph (c) of subsection 3, but was unable to obtain such documents

2-31  before filing the action;

2-32  (b) The claimant or his attorney shall amend the report required

2-33  pursuant to subsection 3 to include any documents and information

2-34  required pursuant to paragraph (c) or (d) of subsection 3 as soon as

2-35  reasonably practicable after receiving the document or information; and

2-36  (c) The court may dismiss the action if the claimant and his attorney

2-37  fail to comply with the requirements of paragraph (b).

2-38  5.  An expert consulted by an attorney to prepare an affidavit

2-39  pursuant to this section must not be a party to the action.

2-40  6.  As used in this section, “expert” means a person who:

2-41  (a) Is licensed in a state to engage in the practice of architecture,

2-42  landscape architecture, professional engineering or land surveying; or

2-43  (b) Teaches or has taught at an accredited college or university in a

2-44  discipline relevant to the action.

2-45  Sec. 4.  1.  The court shall dismiss any action commenced pursuant

2-46  to NRS 40.600 to 40.695, inclusive, and sections 2, 3 and 4 of this act for

2-47  the professional negligence of a design professional if the attorney for

2-48  the complainant fails to:

2-49  (a) File an affidavit required pursuant to section 3 of this act;

3-1    (b) File a report required pursuant to subsection 3 of section 3 of this

3-2  act; or

3-3    (c) Name the expert consulted in the affidavit required pursuant to

3-4  subsection 1 of section 3 of this act.

3-5    2.  The fact that an attorney for a complainant has complied or failed

3-6  to comply with the provisions of section 3 of this act is admissible in the

3-7  action.

3-8    Sec. 5.  NRS 40.600 is hereby amended to read as follows:

3-9    40.600  As used in NRS 40.600 to 40.695, inclusive, and sections 2, 3

3-10  and 4 of this act, unless the context otherwise requires, the words and

3-11  terms defined in NRS 40.605 to 40.630, inclusive, have the meanings

3-12  ascribed to them in those sections.

3-13  Sec. 6. The amendatory provisions of this act do not apply to a claim

3-14  initiated or an action commenced pursuant to NRS 40.600 to 40.695,

3-15  inclusive, and sections 2, 3 and 4 of this act, unless the claim was initiated

3-16  or the action was commenced on or after October 1, 2001.

 

3-17  H